State v. Dixon, s. 2

• Decision Date: 24 November 1980
• Docket Number: Nos. 2,CA-CR,s. 2
• Citation: 622 P.2d 501,127 Ariz. 554
• Parties: The STATE of Arizona, Appellee, v. Rupert Ray DIXON, Appellant. 2006, 2 2016-2.
• Court: Arizona Court of Appeals

Page 501

622 P.2d 501

127 Ariz. 554

The STATE of Arizona, Appellee, v. Rupert Ray DIXON, Appellant.

Nos. 2 CA-CR 2006, 2 CA-CR 2016-2.

Court of Appeals of Arizona, Division 2.

Nov. 24, 1980.

Rehearing Denied Jan. 2, 1981.

Review Denied Jan. 20, 1981.

Robert K. Corbin, Atty. Gen. by William J. Schafer III and David R. Cole, Asst. Attys. Gen., Phoenix, for appellee

Richard S. Oseran, Pima County Public Defender by Barry J. Baker Sipe, Asst. Public Defender, Tucson, for appellant.

OPINION

RICHMOND, Judge.

This is a consolidated appeal from two separate convictions, and the sentences imposed. In 2 CA-CR 2006 appellant challenges his conviction of unlawful sale of a narcotic drug with two prior felony convictions. He bases his appeal on four allegations of error: 1) the denial of a 12-person jury; 2) failure to preclude his impeachment by prior felony convictions; 3) enhanced sentencing based on insufficient proof of a prior felony conviction; 4) denial of his right to allocution prior to sentence pronouncement.

In 2 CA-CR 2016 appellant attacks his conviction of theft with one prior felony conviction. His appeal is based on six allegations of error: 1) failure to preclude his impeachment by prior felony convictions; 2) admission of testimony referring to "mug number" and "mug envelope"; 3) jury instruction on a permissive inference; 4) failure to submit separate theft verdicts to the jury; 5) denial of his right to allocution before sentence pronouncement; 6) denial of his motion to suppress evidence.

We affirm.

RIGHT TO A 12-PERSON JURY

In 2 CA-CR 2006 appellant was charged with one count of unlawful sale of a narcotic drug, a non-dangerous felony with two prior non-dangerous felonies. For this charge he was subject to a possible maximum prison sentence of 28 years. A.R.S. §§ 13-604, 13-701. The court determined that appellant was not entitled to a 12-person jury and empaneled an eight-person jury. A.R.S. § 21-102, Arizona Constitution Art. 2, § 23.

Appellant contends the provision guaranteeing a 12-person jury when the possible sentence is 30 years or more must be interpreted in light of the criminal code existing when that provision was adopted by amendment in 1972. Under the old code a prisoner was eligible for parole after serving one-third of his sentence, or after 10 years of a 30-year sentence. From this he argues the intent of Art. 2, § 23 is to provide a 12-person jury any time a person may suffer commitment without parole eligibility for 10 years or more. Under the present criminal code, effective October 1, 1978, parole eligibility for appellant's maximum 28-year sentence would be 182/3 years. See A.R.S. § 13-604(D). Consequently, appellant maintains, he had a right to a 12-person jury. We do not agree.

The constitutional provision bases the right to a 12-person jury on the maximum sentence, not parole eligibility. The court acted correctly. See State v. Smith, 126 Ariz. 534, 617 P.2d 42 (1980).

Alternatively, appellant argues that the passage of the new criminal code, A.R.S. § 13-101 et seq., is void as unconstitutional and could not be used to determine his right to a 12-person jury. He bases the claim of unconstitutionality on two theories. The first is that one of the new code's purposes was to restrict the availability of a 12-person jury and did not include that purpose in its title as required by Arizona Constitution Art. 4, Pt. 2, § 13. The latter provision is intended to prevent surprise as to the subjects the act governs. See State v. Sutton, 27 Ariz.App. 134, 551 P.2d 583 (1976), aff'd in part, rev'd in part on other grounds, 115 Ariz. 417, 565 P.2d 1278 (1977). It is to be interpreted liberally to uphold the act's constitutionality on any legal basis. State v. Sutton, 115 Ariz. 417, 565 P.2d 1278 (1977). Sentencing is a matter reasonably expected to be dealt with in a criminal code and such purpose is described in A.R.S. § 13-101(6). That the right to a 12-person jury is indirectly affected by the sentencing changes does not render them void. See State v. Harold, 74 Ariz. 210, 246 P.2d 178 (1952).

Appellant's second theory is that the sentencing provisions are unconstitutional because they effectively amend Art. 2, § 23 without complying with Art. 21 governing constitutional amendments. This theory, however, is based on a false premise that the sentencing scheme somehow changes the right to a 12-person jury guaranteed by Art. 2, § 23. The constitutional provision is clearly addressed to the total possible authorized sentence in a criminal case. See State v. Parker, 22 Ariz.App. 111, 524 P.2d 506 (1974). That the new code reduced appellant's maximum possible sentence from life imprisonment to 28 years does not controvert or amend Art. 2, § 23.

IMPEACHMENT BY PRIOR CONVICTIONS

In both cases the court denied appellant's motion to preclude his impeachment by prior convictions pursuant to A.R.S. 17A Rules of Evidence, rule 609(a). Appellant attacks the denials on two alternative theories. First, he claims that reversal is required because the court failed to make an on-the-record determination that the probative value of such evidence outweighs its prejudicial effect. See State v. Cross, 123 Ariz. 494, 600 P.2d 1126 (App.1979). Failure to make the finding on the record, however, does not mandate an automatic reversal. State v. Ellerson, 125 Ariz. 249, 609 P.2d 64 (1980). Although an on-the-record finding based on specific facts and circumstances is preferred, a record which shows that the court did weigh the probative value and the prejudicial effect in exercising its discretion will suffice.

In 2 CA-CR 2006, the motion to preclude was given a full hearing. That the court excluded the prior narcotics conviction while allowing the use of one prior burglary conviction and two prior grand theft convictions for impeachment indicates it weighed the probative value against the prejudicial effect.

In 2 CA-CR 2016, defense counsel submitted his motion to preclude on a memorandum, waiving his right to a hearing on the issue. The court denied the motion as to the narcotics conviction and granted it as to the burglary and grand theft convictions. Again, the exclusion of prior convictions for offenses similar to the matter on trial indicates the court meaningfully weighed the factors required by rule 609(a). Such a record will suffice despite the absence of a specific finding. See State v. Ellerson, supra.

Appellant's alternative theory is that the state failed to carry its burden of proof. See State v. Becerill, 124 Ariz. 535, 606 P.2d 25 (App.1979). In both cases the indictments identified the alleged prior convictions as Arizona felony offenses and included either a judgment order or minute entry to substantiate the convictions. These documents were sufficient to satisfy the first requirement of rule 609(a), that the offenses were felonies.

In 2 CA-CR 2006, the prosecutor effectively argued the probative value of the burglary and grand theft convictions. Such offenses have been recognized as having probative value. See State v. Ellerson, supra (burglary); State v. Becerill, supra (burglary, grand theft).

In 2 CA-CR 2016, although there was no hearing on the motion, the court exercised its discretion by excluding the burglary conviction. We find no abuse of that discretion in the determination that the state had discharged its burden as to the narcotics charge. See State v. Dixon, 126 Ariz. 613, 617 P.2d 779 (1980).

PROOF OF PRIOR CONVICTION

After a guilty verdict in 2 CA-CR 2006, in a trial to the court appellant was found to have been previously convicted of two felonies, subjecting him to an enhanced sentence. A.R.S. § 13-604. He contends the state failed to carry its burden of proof with regard to the prior conviction for burglary and grand theft, Pima County No. A-21527. We do not agree.

The state produced a copy of a package record properly certified by the Department of Corrections as its master file on Rupert Ray Dixon which was admitted into evidence. The package included a judgment and commitment order for A-22629 and A-21527, a fingerprint record, and a photo. This record was properly admitted under 17A A.R.S. Rules of Evidence, Rule 803(8), as a public record. The Department of Corrections records are not within the exception of 803(8)(B) regarding the reports of police officers and other law enforcement personnel and United States v. Oates, 560 F.2d 45 (2d Cir. 1977), cited by appellant, is inapposite. The department is a custodial agency as distinguished from a law enforcement agency. This public record stands as prima facie evidence of the facts it contains. 17 A.R.S. Rules of Criminal Procedure, rule 19.3; 16 A.R.S. Rules of Civil Procedure, rule 44(a). See State v. Peidra, 120 Ariz. 53, 583 P.2d 1373 (App.1978).

Appellant argues the records if admissible as a hearsay exception could still be challenged as to competency. See State v. Cadena, 9 Ariz.App. 369, 452 P.2d 534 (1969). The fingerprint card and photograph were not part of the judgment and commitment order, but all three were certified as part of the master file of the same person. The package photograph thus was prima facie evidence of the identity of the Rupert Ray Dixon convicted in A-21527. That the package included certain items related to a conviction other than A-21527 does not make it inadmissible and the other conviction was not considered in the trial before the court. The state presented the proof necessary to sustain a finding of a prior conviction. See State v. Pennye, 102 Ariz. 207, 427 P.2d 525 (1967).

RIGHT TO ALLOCUTION

Under 17 A.R.S. Rules of Criminal Procedure, rule 26.10(b)(1), the court must give the defendant an opportunity to speak in his own behalf prior to sentencing. Appellant contends he was denied that opportunity in both cases and as a result must be resentenced. We do not agree.

Prior to pronouncing sentence in each case the court addressed defense counsel by name,...